and rendring him incapable to Exercise any Government at all Nay If the share and interest which the Body of the People have in the Preservation of the Laws and Constitution and their concern in the welfare of the whole will make it come up but to a doubtful Case If upon this to rescue us from those Confusions to preserve what remained of the Ancient Government and to restore what had been impaired the Representatives of the People did fill the deserted Throne by proclaiming the Authors of our Deliverance King and Queen and the Body of the People for the number of Male-contents is so inconsiderable that there is no need of softning the word upon their account have owned their Title to the Crown submitted and sworn Allegiance to them as their Governors And if it be visible to the whole World that their Government has produced all the good Effects that were proposed or aimed at and they are in as full and quiet Possession of the Throne as ever any Princes were who sat upon it with a repeated Recognition of their Title I cannot but think that every one who will give himself leave calmly to consider must agree That our Case comes up to that which our Author puts It does not cannot appear that any other Person has a better Right to the Crown and the consequence of our Author 's drawing from that will be That every English-man ought to bear Faith and pay Allegiance to Their Majesties who thanks be to God are in so full a Possession of the Throne But not to enter farther into the general Question which I think ought not to be too freely searcht into lest it give Advantage and Encouragement to a sort of People who will be forward out of Wantonness to put things in practice which nothing but the utmost necessity can justifie I conceive I shall effectually answer all that can be materially objected from the Case of Allegiance c. and the Defence of it against our present Settlement if I can maintain this Proposition That where a King is in the full and quiet possession of the Throne and Exercise of the Government has been solemnly proclaimed and freely and voluntarily recognized and submitted unto by the States of the Kingdom as their King has visibly the Power and Strength of the Nation in his hands the Laws have their due course in his Name and all publick justice is administred by those deputed and commissionated by him altho he had no precedent legal Right and that there is another person living who according to the ordinary course of Hereditary Succession has a just claim to the Crown yet the Laws of England do require every private subject to pay their Allegiance to such a King in possession and protect them in their so doing And this I hope will be fully made out by plain Law and all the seeming Objections offered against it from the Laws of the Land answered To save my self and the Reader some trouble hereafter it will be convenient before I enter into the particular consideration of our Author's Arguments and Objections to observe That the Government of England is to be considered in two respects 1st With regard to the Power of Legislature viz. The King and Body of the States who have power over all positive Laws to make new ones according as they in their Judgments shall think expedient and to alter amend and supply the defects of the old ones as they in prudence shall judg the present circumstances of Affairs require 2ly The Executive Power of which the King is supreme and Courts of Justice and other Officers subordinate under him To them it belongs not to deliberate or determine what in their opinions it were fit or reasonable the Law should be and thereupon declare that to be Law but to declare what the Law is as it at present stands in every case coming judicially before them and to put that Law in Execution This is so very obvious that it must without hesitation be agreed to me and so must the consequence that I draw from it That I need not make it any part of the present Question Whether the Acts of one who is called an Usurper in Title that tend immediately to the destruction of the right of the dispossessed Prince be just in themselves so that they ought to continue in force and not be repealed and annulled by a Power competent for that purpose upon the injured Prince's happening to be restored to his Right But whether such Acts being done according to the known legal Forms and Ceremonies by such a Possessor of the Throne as I have before described every private subject may not in good Conscience submit unto and obey them without taking upon him to judge of his Governour 's Title Nay further whether the Laws of the Land do not protect him in so doing and not only so but require it from him I think the Affirmative is agreeable to the Laws And I now come to consider what our Author says to the contrary The first Point he endeavours to make out is That notwithstanding the Opinions of the Eminent Lawyers whom he mentions which I must observe were delivered in the times of Kings whose Titles to the Crown were undoubted so that there was no necessity for their straining the sense of the Law to make it favour their Master's interest and which for ought that ever yet has appeared were never contradicted hitherto by any one of that profession A King de facto is not Seignior le Roy within the Statute of 25 E. 3. I shall through this Discourse take those words to mean one who is in the full and peaceable possession of the Throne and Exercise of the Government with the free submission of the People by their Representatives assembled in a Parliamentary way but wants a Title by proximity of Blood and Hereditary Succession and undertake for the defence of the duty of Allegiance to such an one only and not to any possession without a true Right short of that If any of the proofs which I shall make use of hereafter shall carry it further they will more strongly prove this But I will not answer for more I observe in general upon this Statute 1. That the punishment prescribed by it for the offences now under debate is the utmost to which a temporal Law can reach Death and Disgrace This will make it highly reasonable that the offence should be plain and certain And in the second place That this Statute was made in favour of the Subject that he might be at a certainty what hazards he runs and not be swallowed up in the Gulf before he apprehended himself to be beyond his Banks It made no new offence but was restrictive of the liberty that Judges had taken before of expounding every thing that an angry or jealous Prince did resent as a wound of his Majesty into High Treason This is so well known to all that have
lookt into the Law that it were idle to quote Authorities for it I will add in the third place as a thing not improper to be observed That it would be a very hard thing before E. 3's time to prove a certain Hereditary Succession The best Historian will find but few Instances of that kind from the Conquest till the time of the making of this Statute So that the defect of Hereditary Title could not be a thing forgotten or slipt over as out of the minds of King or People Yet I can't perceive any thing in this Statute to lead to such a distinction as is now made tho it was made as a Rule for the Subject from which he might learn how he might demean himself in those great matters with safety There is not so much as an Hint that the trying who has the just Right and Title to the Crown whether He who is owned by the States of the Kingdom and has the full Government and administration of all Affairs or another who a thoughtful busie man that can't content himself in the private station wherein God Almighty has placed him but must make himself a Judge of the highest matters will be fancying ought to be there I say That the trying that Point should be left to a Jury of 12 men as it must be should a private person be proceeded against for an attempt upon the Possessor in order to the restoring the dispossessed Prince If it be true that it is not Treason by that Law for a private Subject to attempt any thing against the King in possession in behalf of him that of Right by Hereditary Succession ought to be King This would be an hard Interpretation of a Statute made in the time of a King who obtained possession of the Kingdom by a War levied against his Father and a forced Resignation after the Arms of those who took part with him were successful In which taking up Arms against the King in possession notwithstanding all that might justifie it in Reason of State and Prudence he was sensible that the Laws of the Land would not bear his friends out and therefore thought fit in the first year of his Reign to have an Act of Parliament passed to indemnifie them against ordinary legal proceedings for what they had done This he lookt upon as necessary tho at the same time he thought the Cause in which those who fell in the War died so just in it self that he made a new Law on purpose to save them from suffering in their Estates For we find in the same year there was a Statute made to entitle the Executors of those who were Slain in his Quarrel in the pursuit against his Father to Actions to recover their Testators Goods Lawyers account Co-temporaneam Expositionem the best interpreter of the Sense of Statute-laws I would fain have the Author or any one else who would confine the words Seignior le Roy in that Statute to Lawful and Rightful King by Hereditary Succession only to shew any thing leading to that Interpretation in the History of that time or any of the Kings Reigns before that Where it was ever heard of before that Act that Allegiance was due to the uncrowned unsubmitted-unto Right Heir Nay I will go farther Where in any publick Record before that Statute there does appear a damning of the Title of such a King after a Submission of the People to him in favour of him that was nearer in Blood Whether the several Predecessors of E. 3. who had not a legal Title by Hereditary Succession are not called Kings in the Statutes of almost every year of his Reign and all their Acts unquestioned If there were nothing extant to direct the Subjects to the contrary and the King himself so often told them that those whom I must call Kings de Facto only were Kings without any addition the very letter of this Statute it would instead of being an Ease and Relief to the People have proved according to the present Interpretation the greatest Snare that was possible 'T was easy for them to see and know who exercised the Kingly Office under whose Administration they had the benefit of the Laws and by whose Authority all Judicial Proceedings took their Course They might too without any great difficulty learn who were the visible Attendants on the Throne the King 's near Relations his Wife Son and Daughter The Throne is but one and they saw who possessed that The name King is a name of Office which consists in Exercise that too was as plain to them The words of the Statute seem as plain 'T is Treason to compass or imagine the Death c. of the King Would it not now be a very great hardship to put it upon a private Person to seek an hidden Sense in plain Words and at the peril of his Life and Family to make himself judge of all the Difficulties which may arise upon our Constitution which what it is in all points never was or will be agreed upon Whether this Person that is so expresly within the words of the Statute may not hereafter appear to have been wrongfully possessed And upon that apprehension to put the poor Man under an Obligation of laying himself for the sake of a Nation open to the Vengeance of one who has the plain words of the Law on his side and Power to back it To put him under a necessity of being a Sacrifice to his own private Opinion against the publick acknowledgement of the Body of the People in a case wherein common Sense and the Wisdom of all Governments forbid the admitting a private Person to be a Judge nay won't endure its being made the Subject of a nice and curious Inquiry But I perceive by Defence f. 6 7. That it is one main ground of our Author's Opinion and whereon he principally relies That the Law does not look upon the King de Facto to be King but accounts him that is dispossessed and de Jure ought to be so to be so and he calls upon Dr. Sherlock for Authorities to prove the contrary This explains the two first Lines of his Book where he makes it the description of a King de Jure That he is the Person that has the Regal Authority The Doctor had asserted That the King de Facto was King as a self-evident Proposition and I should think my self very safe in my Proposition still were I in the Doctor 's case without any other proof But I will for once comply with the Author's Request and refer him to a very ingenious Book called The Case of Allegiance to a King in Possession where he may find a great many unanswerable Authorities to that purpose e'en as many as ever there were Revocations or Repeals of the Acts of such Kings There they declare That the Vsurper was in fact King but not in right and after they have done so unless there can be two Kings they have left no other
granted that that Provision would keep the Right and Possession together to require the Obedience of every particular Subject to the Possessor from time to time without allowing the Rabble a liberty of examining into the Title So that it is very far from being an unreasonable Exposition of the Law tho it should happen to be a Protection to the Wife and Son of an Usurper in Title to say the Title of the Possessor of the Crown shall not be canvassed by every Subject but the Dignity of the Office shall set him above any particular persons passing Sentence on and exercising Authority over him In short The Common-Law which made such extraordinary Provision for the security of the Persons of the King and his Relations could not do it for any Sanctity of their Persons any otherwise than as they were invested with the Kingly Office and in relation to that It secured them for their own sakes but more for the sake of the Government and to preserve the Peace and Order of that It supposed indeed that no Person would obtain it but he who had a Right because no other ought to do so and all the Subjects are obliged under the greatest ties to prevent it But 't was as far from the Intention of the Law as it is from Sense and Reason to leave it at the liberty nay make it the duty of every particular person to raise Disturbances and throw an whole Kingdom into Confusion because he against the Recognition and Sense of the Body of the People thinks another's Title to the Crown better than his who wears it So to carry this on as against the People who have no Right at all to the Crown for the preserving and continuing the Hereditary Monarchy it provided for and secured the Son of the King in Possession as the Person who according to our Constitution has presumptively a Right to succeed his Father in the Throne till there be some Authoritative Declaration against his Father's Title I confess Heir Apparent to a King de facto who has no Title to the Crown but his own Possession as the Author has tacked the Def. f. 9. words together does seem odd but the difficulty is in the words only not in the thing The name King is never clogged with these words de Facto till he is out of Possession The private Subject must look upon him as his King and consequently on his Son as the Heir of his King and so not attempt any thing against them which is what the Laws against Treason provide for The de Facto which is all that imports any inconsistency or Contradiction does not then belong to him But we are told That the constant Practice and Custom Case f. 9. Def. f. 13. of the Realm is so far from warranting my Lord Coke 's Gloss that it proves the contrary For that the Parliaments upon every Revolution used to Attaint the Adherents to those who opposed them tho acting under a King in Possession nay dealt with the Possessor himself as a Traytor scarce allowed him the Name of a King or lookt upon his Acts of Government as Valid and Authoritative in themselves I lay all these together because the same Answer will in a great measure serve for all of them tho each may have its particular consideration None of those Proceedings amount to so much as a colourable Proof That to act against one who in Justice and according to our Constitution ought to be King but is out of Possession in Obedience unto and Defence of the King who is publickly submitted unto by the Body of the Kingdom and in Possession of the Government is by any Law at present a Law of the Land Criminal All those Attainders were by Parliaments whose Power is not to be contradicted or the Reasons of their Proceedings disputed It was without doubt by all moderate men at that time lookt upon as very hard and contrary to Equity to punish men by positive Laws ex post facto for what was no breach of any of the publick Laws or Acts of State then in being These Laws were undoubtedly iniquae unequitable but I believe no one would have put the Author to the trouble of proving them to be Laws Def. f. 15. The People either of themselves to make Court to the Power then uppermost or being over-awed by the Interest and Recommendation of those about the King did generally elect and return the Friends and Adherents of the prevailing Party whose Wounds being fresh and their Losses quick and piercing they kept themselves within no bounds of Justice or Moderation They were resolved to gratify their private Resentments and revenge themselves for Injuries done them or their Friends upon any terms so that they took not either the Laws of the Land or the common Rules of Justice for their guide but made both truckle to their Passions The King was glad to lessen the number of his Enemies the cutting off many of whom and frightning the rest into Submission by such Examples of his Severity he lookt upon as the only means to secure himself against another turn That this was the Case is certain and I wish we could find instances in our Ancient Histories only in the times of our Edward's and Henry's to prove that where there are two contesting Parties in a Kingdom neither of them will make use of the advantages they happen to obtain over the other with such a temper as right Reason and Prudence would direct But the violence of such Proceedings must not be offered as any proof or measure of Right nay they are unfit to be mentioned or made use of in any cool debate unless it be to create in the minds of Men an abhorrence of such Actings and by setting forth the calamitous Consequences that were produced by the punishing the poor Subject upon the various Successes on cach side to recommend that wise and equal Law which not only declared That the Subject 11 H. 7. ought to be indemnified in his paying his Service to the King for the time being for that it was his Duty to do so but provided That all Statutes made afterwards to the contrary should be void This latter part was all of the Statute which was new the residue was always Law and is there only authoritatively declared to be so And that part of it that was new can't have its full effect to restrain subsequent Parliaments to which no positive Laws can give bounds But yet their aiming at such a Restraint is a sufficient Caution to future Parliaments to consider very well before they make any Law contrary to it which is thereby adjudged a thing utterly unfit to be done and that in the most solemn manner by as wise a Prince as ever filled the Throne and a People whose Sufferings under the mischiefs of a contrary Practice had convinced them not only of the reasonableness but the absolute necessity of the thing I think I
already said will find the mistake that he is under when he says the Lawyers agree That it is this Statute only which has extended Def. f. 5. the words Seignior le Roy in 25 Edw. 3. to comprehend an Vsurper in possession as King for the time being whereas before 25 Edw. 3. meant Lawful and Rightful Kings only What is already said to that purpose will I believe satisfie every one that the Judges who are Expositors of Statutes and were to put that Act in Execution did never look upon themselves as competent for the determining the Title of the Crown but lookt upon him to be Seignior le Roy within that Act who executed the Office of King in administring Justice and protecting and defending the People The end of that Statute 11 H. 7. as I have said before was not so much to make a solemn Declaration of the Law which all through it is taken for granted as an indisputable Opinion of that time at least as it was to condemn the way that had too often been lately taken to destroy the good Effects of the Law in that particular by making so many revengeful Acts of Attainder upon every change They endeavoured as far as the Nature of the thing would admit of it to tie up even the Hands of future Parliaments from acting contrary to that easie and reasonable Rule And having done that little thought they had left a Liberty to private Men to vent their Opinions and Fancies raise Scruples in the minds of People and write Books to prove that a King is no King nor to be obeyed And that a bare Right to be a King which supposes and imports in the very terms themselves his being dispossessed of the Throne and Office makes him the Only Person meant by the words Seignior le Roy whereas he that is in full possession of the Office and Government is quite out of them But to shew our Author that the Notion was not quite new and first introduced by this Statute to serve a particular turn nor the Opinion of Lawyers only I would refer him to a Treatise Entituled An Historical Account of some things relating to the Nature of the English Government there f. 40. He will find the words of a great many Historians quoted which I will not Transcribe all censuring the Act of those Nobles who upon dislike to William Rufus that was possessed of the Government did endeavour to dethrone him and advance his Elder Brother Robert to the Throne as an Execrable Fact calling them Traiterous Perfidious and Perjured Persons And declaring that they who sided with William were Faithful to their Earthly Lord Though as appears in the same page those very Historians agreed that Robert had manifest Right to the Kingdom by course of Hereditary Succession Nay for want of other Authorities I would venture to make Use once more of our Author's Act 1 Edw. 4. which not only very fully asserts That the Vsurpers were by their Vsurpation possessed of the Regal Power Estate Dignity Preheminence Possession and Lordship of England to which purpose it was quoted before but goes on By Edward the Fourth's removing Henry the Sixth from the Occupation Vsurpation Intrusion Reign and Governance of the same Realm of England and Lordship to the Vniversal Comfort and Consolation of all his Subjects and Liege Men plenteously joyed to be amoved and departed from the Obeysance and Government of the Vnrighteous Vsurper c. Our Author may with little pains learn what the import of the Term Obeysance was at that time lookt upon to be I confess the Act of 11 Hen. 7. to me seems to make the most Solemn Declaration of this as a Rule not to be varied from That Allegiance is due to the King for the time being And 't is the Subjects Duty to pay it to him And I would desire no more from any Man but that he would read it over attentively to make him a Judge between my Author and me whether fuller words could reasonably be thought of to silence all Opinions to the contrary Let us see how our Author quits himself from them I believe he will not rely much upon the first Objection he seems to make That only the enacting part of Case f. 2â— a Statute is Law He brings it in with an If and never takes it up again so that at present without detaining my Reader in the Proof that it is day when the Sun shines I will take it for granted That what an Act of Parliament recites or declares to be Law is so And then instead of what our Author has set down as all that Case f. 27. this Statute proves It proves thus much at least That it is the Duty of every private Subject to attend and pay his Allegiance to the King in Possession And contrary to the Laws as they stand at present and to all Reason and good Conscience even for a Parliament whose Power can't be withstood to make his so doing Penal to him I will agree to him that Hen. 7. himself had not practised Def. f. 42. according to this Rule but made use of the same Liberty former Kings and Parliaments had taken of reaking his Vengeance on those that opposed him He was too fond of the Crown He would not else have set up for it without any Right at first And it is not to be imagined that he who made no scruple of obtaining it against Right and put off so long the making his Possession just when he had such an Opportunity of doing it by marrying her who had the undoubted Right would make any difficulty of securing himself in that possession by any means whatsoever This criminates him in his Morals proves him to be a Man whom Interest did Rule to the doing things which he was convinced were against Reason and Conscience and proves no more Nay I must offer in his Excuse that he afterwards made what amends he could by condemning his own former ill and using his utmost endeavours that the poor Subject should never be harrassed and punished at that barbarous rate more Can a Man be real in Objecting to a Law agreed unto Case f. 29. and passed by those Persons whom the whole Body of the Kingdom thought fittest to represent them and to whose Integrity and Understanding they entrusted their dearest Concerns That it was made by an Usurper in Title and 't is not he determines it for the good Case f. 18. of the Community Yet such Laws as are for the Publick Good he agrees are valid though passed by an Usurper Nay our Author goes further and enquires by helps dehors as the Lawyers call it Foreign to the words of the Act it self what the End and Design of the King under-hand was in procuring the Statute and that he discovers to be nothing less than to secure himself in his Unjust Usurpation because Perkin Warbeck happened to be up in Arms about that time so that
Nature obliges a Man to make Restitution for Injuries done I agree but that must be out of what is his own without Injury to another else having robbed one and having nothing of my own wherewith to make him Reparation I might rob another to do it So in the present Case If I have been accessary to the unjust dispossessing the rightful Prince nature obliges me to make him what recompence I justly may But if it fall out that nature does not at all intermeddle with determining what particucular Persons have a Right to the Government Or make one Man King the rest his Subjects but that the Case f. 40. Relation between the Persons governing and to be governed and the measures of Protection and Obedience thence flowing are of positive Institution and the Effect of the particular Laws of the Land And if the Laws of the Land have so fixt the Duty of my Allegiance to the King in Possession that acting in the condition of a private Subject I can't withdraw it from him without a breach of those Laws without taking from him what the Law has given him a Right unto The Law of Nature can't oblige me to that nor has the dispossessed Prince any Right by the Law of Nature to claim or exact that satisfaction from me so that the Statute 11 H. 7. does not at all thwart or contradict the Law of Nature or any Duty in dispensibly incumbent on the Subject by it This Consideration will indeed aggravate the Injustice of my contributing towards such an Usurpation and make People that have any sense of Religion very cautious how they venture upon doing a thing of that kind where the very Act of doing the thing puts it out of their Power to wipe out any part of their former Sin by an endeavour to make Reparation without their contracting a new Guilt Our Author compares the case of Obedience due Case f 23. to the King with the Case of the Subject as to the Protection which the King is obliged to give him These I agree are very fitly considered together as mutually explaining and proving one the other Let us see whether the reason of that Case will not fully come up to the proof of what I am endeavouring to make out The King is obliged to maintain his Subjects in their Rights and Properties not only while they are in possession but also when another has disseized them by fraud or violence True he is to do the latter which carries a resemblance to the case in question as well as the former But it must be according to the measures and pursuing the methods the Law prescribes Where a subject is disseized Law is to precede force There must be a decision by a proper Judge in his favour before there be a restoring him to his possession Till that be done he is to quiet and defend the Possessour in the Possession tho' gotten by fraud and injustice The King himself to whose Wisdom and Authority the Constitution has entrusted so much cannot by virtue of all that Power doe the greatest or least of his Subjects that Right which he in his private Capacity undoubtedly knows belongs and that the Law ought to adjudge to him and shall we then say that in the Kings case a private Man to whom the Law has given no manner of Authority to judge of any ones Title shall take upon him by force to attempt the unsetling a King who is quietly Possessed of the Government because he thinks another man has a better right Is it not more agreeable to the Comparison our Author has made and to the Reason of Mankind That where there is a National Submission in a Parliamentary way to the Possessour of the Throne Every pretender to impeach that Settlement ought to wait for a Declaration of his Right by the States of the Kingdom till which is done Particular Subjects ought with regard to common Safety and Peace to acquiesce under the Power from which they receive Protection and to which by their Representatives they have Submitted I own there may fall out very hard cases sometimes upon these grounds and such Objections as will not receive an easie Answer But I am sure it will be very easie to maintain That the mischiefs will be less in themselves and likely to fall out seldomer than by allowing every Subject a Liberty to embroil the State upon a pretence that the Government is not in the hands it ought to be In matters of this kind in a mixt Monarchy there will be some difficulties in the Theory that are unanswerable The notion of a mixt monarchy it self will not bear a strict disquisition For granting that of necessity there must in all Governments be some last resort for the final determination of all differences which will seem a very reasonable proposition any Man may immediately run it up to a Tyranny or Popular Government If the last resort and final determination of Right or Wrong between the King and People should be agreed to be in the King notwithstanding all the Laws now enacted he may when he pleases in Theory make his Will the sole Law For whenever he is minded to attempt it after the matter 's running through other hands it comes at last to him to give the Rule which is the gaining of his point So on the other side if the People are the ultimate Resort and sole Judges of the Rights of their Prince of necessity their determinations must be obeyed tho' they determine against his true Right And that will in consequence prove the Government no Monarchy tho' he be in Possession and carry the name of King there being a Power superiour to him and to which he is accountable for his Actions If both Prince and People are to join in it and they differ in their Sentiments there is no determination and consequently uncertainty and confusion This is the natural consequence of driving up these notions to their heighth But this is not therefore every day the case There is a good old saying that will interpose to save us Ipsae res nolunt malè administrari This will notwithstanding all those fine notions keep both the Parties from attempting successfully any thing extravagant and utterly inconsistent with that mixture of Power by which we are ruled so much to our ease and advantage tho' that mixture of Power can't be maintained in strict reasoning I say all this to this purpose I find it is strongly objected to what I have advanced viz. That a private Subject after a solemn submission of the Kingdom to an Usurper in Title ought not to attempt the restoring the King de jure till there be some solemn decision in his favour the Power of which I have placed in the States of the Kingdom That this way of applying to the Parliament for Justice and making their Claim there may be prevented by the Usurper's not admitting the States of the Kingdom to meet or receive
Adherents and those that support him in his Usurpation shall be punished as Traytors This would have been so far from a total Repeal that it would rather have been a Confirmation of the precedent Laws in all other cases but those particular Instances The same is to be said to the Oaths enjoyned by those Laws of H. 8. for the establishing the Succession Supposing them to have laid an Obligation upon Conscience contrary to the general Purvieu of the 11 H. 7. for the time to which they extended yet the matter of them is long since ceas'd And I can't find any Reason or Authority to prove that a contrary provision only for a fixed and determinate time does for ever repeal a general positive Law The late Oaths of Obedience in Queen Eliz. and King James's times have left the Title to the Crown as general and unsettled as it was in the time of H. 7. So that the Subjects are now obliged by Vertue of those Oaths to the true Successors in the Kingly Power and I think what is already said makes it plain that a private Subject must look upon those who are in full and quiet possession of the Throne to be truly and lawfully so till they are either devested of the Power or their Right condemned by those that have Authority to do it The word Heirs I own is joyned to Successors in these Oaths but if either as the Lawyers say Haeres dicitur ab Haereditate or the words of themselves being joynt extend only to such an Heir as is a Successor as I must think till I hear better Arguments to the contrary then I ever yet have met with these Oaths will make for not against me However I can't find any contradiction between these Oaths and the Statute 11 H. 7. They do not speak Ad idem 'T is too gross to be put upon any Man at this time of day to say These Oaths oblige us to any certain Person under the name Heirs and Successors during the life of the Possessor so that the end of these Oaths was to put an Obligation on Conscience to prevent the Act of Usurpation and preserve the Government Hereditary The Act of H. 7. supposes that settled and declares what a Subject is to do when it is so Besides I think the Lawyers generally agree it for a Rule That it must be a very plain Contrariety and absolute Inconsistency that shall effect a Repeal of a former by a subsequent Statute without express words of Repeal And that a Law being once established with the universal consent of the whole Kingdom it must not be look'd upon to be abrogated by any strained Construction of general and ambiguous Words And if this be true I am sure the Stat. 11 H. 7. stands yet unrepealed by any of the Laws our Author has produc'd against it I can't but wonder to hear a private person determining That a Statute That is a Law of the Land Case f. 36. Defence f. 47. must be lookt upon as null and invalid in respect of the matter of it because in his Opinion It establishes Iniquity and is made as he says Case f. 32. To the disherison of a lawful King That is a King of the Laws making In plain English this amounts to thus much The Title which the King has to the Crown tho it belongs not to him either by the Law of God or Nature but by a positive Law of the Land can neither be wholly defeated or abridged in part nor the Power or Rights of it moderated for a certain time by as positive a Law This is a very Paradox and needs a man of our Author's Learning and industry to make it look colourable This and a great deal more of our Author 's arguing Case f. 37 38 39 40 41. will fall to the ground if he will till he proves the contrary admit 1. That the word King does not necessarily import in it self in all places any certain and determinate Rights and Priviledges but that the positive Laws of the Land are Bounds unto and may prescribe the Order and Form of legal Ligeance and may enlarge or abridge those Rights which the name King according to the natural extent and sense of the Word would have entitled the Person unto And 2dly if I could prevail upon him not to lay so much stress upon that Word when 't is joyned to de jure not suppose him still in possession of the Office but fairly English it a Person who has Right to the Office and Government but is wrongfully put out of it The fallacy grounded upon the latter of these runs through so many parts of the Book that more than half his arguing part might have been saved if he he would have stated it truly If he would but agree to me that the word King is rather a name of publick Office than personal Right there would be an end of a great part of the Dispute Let us turn it into Governour and see how the Question will then stand VVhether in this Government the Subjects are to pay their Service and Duty to him that is in Fact their Governour tho he obtained the Government by unjust means or to him who ought to be their Governour but plainly is not nor has a Power to exercise any Acts of Government either over or in defence of them I am apt to think it would be an hard thing for a man of very great parts so much as to amuse any man if he would state the case so or to perswade him that the Duty of the person governed has any relation to the Right of the person distinct from the Office In short That private man goes beyond his Line who looks upon him that is out of Possession to be his King or acts accordingly when the Throne is filled with a Possessor qualified as I have before set down And if so the Statute 11 H. 7. implies nothing of that Contradiction which the Case f. 53. fixes upon it I would not be mistaken in this so as to have it objected to me That I am coming within the reach of that mischievous Position of separating the Person and Office It was always my Opinion that the doing it as it has been formerly made use of would be in consequence very pernicious and is contrary to the Rules of Law The mischief of that Position is the distinguishing between the Kings Acts and Capacities while he is a King and in Possession to say some of his Acts are those of his natural person separated from his politick Capacity and upon that supposition to take a liberty of acting against his natural Person as supposing that distinct from his politick Capacity This appears to be the Mischief by what is quoted out of Calvin's Case where 't is said That Ligeance Defence f. 25. is due to the natural Person of the King which is ever accompanied by the politick Capacity and the politick Capacity as it were
appropriated to the natural Capacity and 't is not due to the politick Capacity only that is to the Crown and Kingdom distinct from his natural Capacity And by the Act of Uniformity which declares it a Trayterous Position to take Arms by the King's Authority against his Person This shews that the ill of the distinction condemned there lies in the separating the Capacities when they are really joyned that is when the natural Person is in possession of the Kingly Office to set him up to fight against himself his own Authority against his Person this is contrary to Law which as it appears before consolidates the natural Person with the politick Capacity I am so far from denying this that it is the ground whereupon I take Obedience to be due to a King de facto But the mischievous part does not at all reach our Case where we suppose him who has a Right to be King to be utterly dispossessed and devested of the Office and the Right of the Possessor solemnly recognized by the Body of the People There 't is not a nice distinction that separates between the Capacities but evident Fact and Truth common Sense and the Laws of the Land and to the Person as a Person devested of the Office Allegiance is not due That it was a very great wrong unjustly to devest the Person of the Office and put another into it can't be doubted and 't is a part of that wrong that he is thereby devested of that which makes the Relation between him and the People that of right ought to be his Subjects and pay him Allegiance but till he reunite the Office to his Person the wrong remains and the Relation during that time fails It may be very well maintained that the Statute 11 H. 7. shall have all the Effect and Operation the plain Words of it will reasonably bear and yet none of those dismal Breaches upon the Constitution and Calamitous Consequences set forth Case f. 38. attend it That the Fundamental Constitution of England is a Monarchy and that settled antecedently to any Statute Law will be very readily agreed to him by me But he goes a little too fast when he infers thence That therefore there must of necessity be some certain person in every Age in whom the Constitution vests a Right by vertue of which he is lawful and rightful King of this Realm For 't is not of absolute necessity that the particular Race and Family should be part of that Fundamental Constitution May it not be rationally supposed that the Framers of our Government proceeded by degrees first debated what the form of the Government in general should be and fixt upon a Monarchy What kind of Monarchy would make another step and I will suppose that to prevent the ill effects of Ambition and canvasing for it they agreed it should be an Hereditary one such as should be governed by the course of descent not elective This in common sence it must be presumed they did before they came to fix upon certain Persons or Families into whose hands they should put the Government Nay 't is impossible to maintain our Government to be a limited or mixt Monarchy in its nature without such a supposition so that I can't by any means look upon the particular Family to be any part of the Original and Fundamental Constitution but at most only a secondary one a putting the Constitution that they had agreed upon into Act and Execution And therefore it may very well be for any thing that I can find in reason to the contrary That the Government may fall into the hands of persons that have no relation to the Line of the Princes first submitted unto who shall yet have a Right by vertue of the Fundamental Constitution Our Author has almost yielded me this in his first Case f. 2. Preliminary But to vary that instance a little Suppose during the Life of him that should happen to be the last of the Race of our Princes He and his Parliament should agree that after his death another Person and his Race should succeed to the Throne according to the directions and Measures prescribed by the present Laws would any body question his right to succeed The Fundamental Government would be still the same A mixt Monarchy according to the present Constitution And I cannot perswade my self that in the Constitution it self the interest of the particular Family was so highly regarded as that the one must necessarily fall with the other Our Author indeed I find thinks that because Hereditary is joyned to Monarchy Defence f. 12. when once it falls to another Family the Monarchy is gone An Estate in Fee-simple has this Quality that it is an Estate of Inheritance That is an Hereditary Estate If therefore the possessor transfer it to a Stranger must the Estate be gone suppose Hereditary should be expounded in the one case as well as the other to signifie such an Estate as will of its own nature descend to Heirs and vest in them a Title if the Discent be not interrupted by such methods as the Law allows of And be lookt upon to be set in opposition to Elective in the one case and an Estate determinable upon the death of the Party in the other I confess I should think it an exceeding of their Power for a King and Parliament to turn this Government into a Common-wealth for they act under the present Frame and Constitution Whenever that is dissolved they have no longer a right to act as Representatives of the People so that they cannot for them submit to a new form of Government To the doing any thing of that kind there must be first a dissolution of the present Frame and then either all must joyn in the erecting a new one or they must after they are reinstated in the Liberty which they had by nature agree upon some method of being represented and delegate their Right and Power to such Representatives This shews that this opinion does not offer at the warranting a subjection to any Usurper but such an one as is in possession under the form the present Constitution allows All others not agreeable to this Frame of Government are in above or beside the Law and consequently have not Right to Legal Allegiance which is the result of the present Constitution and of Laws made for the preservation of that Such a Power may hold me in subjection as a conquered Man or a Slave and for the obtaining my Life or Freedom I may anew stipulate with them and from that time they may justly claim my Allegiance by vertue of that stipulation I may stipulate anew I say if my former allegiance obstruct it not But that may very well fall out to be the case for till there is an entire dissolution of the Government whether that must be done by the agreement of all who have an interest in it or that a majority will determine the rest I own that